Human Rights
S ELECTED D ECISIONS OF THE C OMMITTEE
AGAINST T ORTURE
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
Volume
1
CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT
SELECTED DECISIONS OF THE COMMITTEE
AGAINST TORTURE
Volume I
Eleventh to thirty-eighth sessions (November 1993 – May 2007)
UNITED NATIONS New York and Geneva, 2008
NOTE
The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries.
*
* *
Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a symbol indicates a reference to a United Nations document.
HR/CAT/PUB/1
UNITED NATIONS
PUBLICATION
Sales N° E.08.XIV.8
ISBN 978-92-1-154185-4
CONTENTS
Page
Introduction... 1
A. Inadmissibility ... 3
(Committee’s session indicated in brackets) N° 247/2004 [35] A.A. v. Azerbaijan... 3
N° 273/2005 [36] T.A. v. Canada... 7
B. Views under article 22 of the Convention against Torture ... 12
N° 8/1991 [11] Qani Halimi-Nebzibi v. Austria... 12
N° 13/1993 [12] Balabou Mutombo v. Switzerland... 15
N° 34/1995 [18] Seid Mortesa Aemei v. Switzerland... 21
N° 43/1996 [17] Kaveh Yaragh Tala v. Sweden... 27
N° 39/1996 [18] Gorki Ernesto Tapia Páez v. Sweden... 31
N° 59/1996 [20] Encarnación Blanco Abad v. Spain... 37
N° 63/1997 [23] Josu Arkauz Arana v. France... 43
N° 99/1997 [24] T.P.S. v. Canada... 51
N° 110/1998 [21] Cecilia Rasana Núñez Chipana v. Venezuela... 62
N° 113/1998 [26] Ristic v. Yugoslavia... 65
N° 120/1998 [22] Sadiq Shek Elmi v. Australia... 70
N° 161/2000 [29] Hajrizi Dzemajl et al. v. Yugoslavia... 78
N° 171/2000 [34] Jovica Dimitrov v. Serbia and Montenegro... 85
N° 172/2000 [35] Danilo Dimitrijevic v. Serbia and Montenegro... 89
N° 174/2000 [35] Nikoliü v. Serbia and Montenegro... 92
N° 181/2001 [36] Suleymane Guengueng et al. v. Senegal... 99
N° 187/2001 [31] Dhaou Belgacem Thabti v. Tunisia... 107
N° 188/2001 [31] Imed Abdelli v. Tunisia... 120
N° 189/2001 [31] Bouabdallah Ltaief v. Tunisia... 133
N° 195/2002 [34] Mafhoud Brada v. France... 146
N° 207/2002 [33] Dragan Dimitrijevic v. Serbia and Montenegro... 155
N° 212/2002 [34] Kepa Urra Guridi v. Spain... 158
N° 214/2002 [32] M.A.K. v. Germany... 162
N° 219/2002 [30] G.K. v. Switzerland... 170
N° 233/2003 [34] Ahmed Hussein Mustafa Kamil Agiza v. Sweden... 177
N° 238/2003 [35] Z.T. v. Norway... 201
N° 258/2004 [35] Mostafa Dadar v. Canada... 209
N° 262/2005 [37] V.L. v. Switzerland... 215
N° 279/2005 [37] C.T. and K.M. v. Sweden... 221
N° 280/2005 [37] Gamal El Rgeig v. Switzerland... 227
N° 282/2005 [37] S.P.A. v. Canada... 231
N° 300/2006 [38] Adel Tebourski v. France... 237
Author and victim index... 243
Introduction
The worldwide eradication of the practice of torture was one of the major challenges of the United Nations only a few years after it was created. To ensure adequate protection for all persons against torture and other forms of cruel, inhuman or degrading treatment or punishment, the United Nations has, over the years, adopted a number of universally applicable standards. The adoption, on 10 December 1984, of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment was a milestone in the codification process to combat torture.
In adopting this instrument, the United Nations also established a monitoring body, the Committee against Torture, whose main function is to ensure that the Convention is observed and implemented.
The Committee met for the first time in April 1988 in Geneva and has since carried out numerous activities which have made it better known to the public at large.
The Convention against Torture consists of 33 articles and entered into force on 26 June 1987. By the end of 2007, 145 States had ratified the Convention or acceded to it.
The Committee against Torture was established pursuant to article 17 of the Convention. It consists of 10 experts of high moral standing and recognized competence in the field of human rights. The experts, who must be nationals of States parties, are elected by those States by secret ballot. They are elected for a term of four years and are eligible for re-election.
The Committee holds two regular sessions each year.
It elects from among its members a Chairperson, three Vice-Chairpersons as well as a Rapporteur.
These officers are elected for a term of two years and are eligible for re-election.
At its initial meeting in 1988, the Committee adopted its rules of procedure and set out its working methods, in conformity with the provisions of the Convention. The Committee’s working methods have been fine-tuned on a number of subsequent occasions.
Like other international human rights treaties, the Convention against Torture gives individuals, under certain circumstances, the right to lodge complaints regarding the violation of one or more of the provisions of the Convention by a State party. For the Committee to be able to admit and examine individual communications against a State party, its competence in that regard must have been expressly recognized by the State concerned. Individual
complaints are always examined by the Committee in closed meetings.
A communication may be submitted by any private individual who claims to be the victim of a violation of the Convention by a State party that has accepted the competence of the Committee under article 22 and which is subject to its jurisdiction. If alleged victims are not in a position to submit the communication themselves, their relatives or representatives may act on their behalf.
By 1 March 2008, the following 64 States had made the declaration under article 22 of the Convention:
Algeria, Andorra, Argentina, Australia, Austria, Azerbaijan, Belgium, Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, Burundi, Canada, Cameroon, Chile, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Finland, France, Georgia, Germany, Ghana, Greece, Guatemala, Hungary, Iceland, Ireland, Italy, Kazakhstan, Liechtenstein, Luxembourg, Malta, Mexico, Monaco, Morocco, Netherlands, New Zealand, Norway, Paraguay, Peru, Poland, Portugal, Republic of Korea, Russian Federation, Senegal, Serbia, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Togo, Tunisia, Turkey, Ukraine, Uruguay, Venezuela (Bolivarian Republic of).
When considering a complaint, the Committee first examines its admissibility. Conditions for admissibility are specified in the Convention and in the Committee’s rules of procedure. For a communication to be declared admissible:
It must not be anonymous or incompatible with the provisions of the Convention.
It must not constitute an abuse of the right to submit a communication under article 22.
It must not have been examined (or be under examination) under another procedure of international investigation or settlement.
The complainant must have exhausted all available and effective domestic remedies before sending the complaint to the Committee.
The Committee may request the State party concerned or the complainant to submit additional information, clarifications or observations relevant to the admissibility of the case.
If the Committee decides that a communication is admissible, after informing the complainant and transmitting its decision to the State party concerned, it will consider the merits of the case. Within six months, the State party concerned should submit to the Committee explanations or statements clarifying the case and indicating any measures that may have been taken to remedy the situation. The complainant may also submit observations or additional information to the Committee.
When registering a communication, or when considering either the admissibility or the merits of a case, and prior to any decision being taken, the Committee may, pursuant to rule 108 of its rules of procedure, request the State party concerned to take measures to avoid potential irreparable damage to the alleged victim. This provision offers persons who claim a violation of the Convention protection against any State party action or inaction that would be incompatible with that State’s obligations under the Convention. At the same time, it does not prejudge the Committee’s final decision.
In the light of all the information made available to it by the complainant and the State party concerned, the Committee considers the communication and adopts its Views thereon. Any member of the Committee may express an individual opinion. The Views are transmitted to the complainant and the State party, which if a violation of the Convention has been found, is invited by the Committee to inform it of any action it may take in conformity with the Views. Such follow-up information is usually requested within three months of the transmittal of the Views.
The Committee includes in its annual report a summary of the communications examined, of the explanations and statements of the State parties concerned, and of its own Views.
By the end of its 39th session in November 2007, the Committee had adopted 145 Views on individual communications submitted to it.
From the first to the end of the 39th session of the Committee, 332 communications relating to alleged violations by States parties had been registered for consideration under article 22 of the Convention. By the end of 2007, the status of these communications was as follows:
145 concluded by adoption of Views (47 with finding of a violation of the Convention, 98 without finding of a violation of the Convention)
58 declared inadmissible
89 discontinued or withdrawn
4 declared admissible and awaiting a decision on the merits
3 suspended
33 pending at the pre-admissibility stage
A. Inadmissibility
Communication N° 247/2004
Submitted by: A.A.
Alleged victim: The complainant State party: Azerbaijan
Declared inadmissible: 25 November 2005
Subject matter: ill-treatment on death row
Procedural issues: examination by another procedure of international investigation or settlement; admissibility ratione temporis;
exceptions to the rule of exhaustion of domestic remedies
Substantive issue: cruel, inhuman and degrading treatment
Articles of the Convention: 1, 2, 12, 13
1.1 The complainant is Mr. A.A.,** an Azeri national sentenced to death on 24 August 1994 by the Supreme Court of Azerbaijan. On 10 February 1998, all death sentences handed down in Azerbaijan, including the complainant’s, were commuted to life imprisonment, following the abolition of the death penalty by Parliament. The complainant claims to be a victim of violation by Azerbaijan of his rights under articles 1, 2, 12 and 13, of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment (the Convention). He is represented by counsel.
1.2 Azerbaijan became a State party to the Convention on 16 August 1996 (date of accession), and made the declaration under article 22 on 4 February 2002.
The facts as submitted
2.1 The complainant was a police inspector. On 24 August 1994, he was found guilty of murder, illegal storage of and port of fire arms, voluntary destruction of public property, murder with aggravating circumstances, and attempted murder.
He was sentenced to death by the Supreme Court of Azerbaijan, allegedly without having been given the right to appeal against this judgement. The complainant claims that his trial did not meet the requirements of due process and was tainted by the authorities’ desire to avenge the murder of a policeman. He also explains that two of the three individuals composing the court (so-called “people’s assessors”) had refused to countersign his death sentence.
** Initials changed at the request of the complainant.
2.2 After his conviction, the complainant was placed on death row in Baylovskaya prison (Baku), where, he allegedly shared a 6 square metres cell with “5–6” other prisoners also under sentence of death. The cell was equipped with only one bunk bed for all of them, and the prisoners had to sleep in turns. The window of the cell was obstructed by metal plates and no light could penetrate; there was only a dim lamp in the cell, which was constantly lit.
2.3 According to the complainant, on 1 October 1994, a group of prisoners escaped from Baylovskaya prison.1 The same day, the prosecutor in charge of prisons allegedly informed the prison authorities that they were allowed to beat (to death) all prisoners “under his responsibility”. After this, conditions of detention worsened. No recreation walks were authorized between 1994 and 1998.
From 1994 to 1996, prisoners were obliged to take showers directly in the cells, while no bathroom existed; a collective bathroom was set up only in the summer of 1996; showers were then allowed at 20–
30 days intervals, for 10–15 minutes per cell. The complainant states that more than 70 prisoners under sentences of death passed away while he was on death row from 1994 to 1998, due to the worsening conditions of detention.
2.4 The complainant explains that despite the fact that prison regulations allowed him to receive the visit of his family every month, as well as to receive a 5 kg parcel, in reality, and especially after the escaping of prisoners in October 1994, visits and parcels were “irregular”.
2.5 According to the complainant, during the morning calls, all prisoners had to leave their cells, and to stand in front of the door leading to the fire squad basement. In addition, during his detention on death row, the execution chambers were cleaned on 7–8 occasions; every time thereafter, the administration threatened that a series of executions was expected.
1 Throughout the text, the complainant refers to the events of October 1994 as to “escape” and “attempt to escape”, without differentiation. It transpires, however, that 10 prisoners had escaped.
2.6 The complainant claims that although the law stipulated that former policemen had to be held separately, he was held together with ordinary criminals. There was allegedly an attempt to kill him while he slept, and he was severely beaten by his cell mates twice.
2.7 The complainant explains that after the
“escape” in 1994, and until March 1995, no medical doctor visited the death section. Ill prisoners allegedly were held together with other prisoners, surgery was made in inadequate conditions and several prisoners died because of bad medical care.
2.8 It is further stated that immediately after the 1994 “escape”, no food or water was supplied to the prisoners; when the supply was restored, rations were reduced by half. Temperatures at night were below 16° Celsius, but no covers were distributed to the prisoner between October 1994 and January 1995; covers were allowed only after an intervention by the International Committee of the Red Cross.
2.9 The complainant gives details on the allegedly bad treatment in 1994–1996: during the morning calls, prisoners were moved out of their cells, one by one, and were beaten (with wooden sticks, police batons, and electric cables, inter alia), up to the point when they fell to the ground losing conscience.
Accordingly, some 45 prisoners lost their lives in such circumstances.
2.10 In May 1996, the prison administration discovered hidden documents in the complainant’s cell, in which he recorded the acts of the prison authorities against him, and also listed persons who had died on death row as a consequence of ill- treatment and torture. He was severely beaten; his pens and paper were confiscated. In September 1996, a governmental delegation inspected the prison.
Even though only few prisoners filed minor complaints, since they were afraid of retaliation, all those under sentence of death were severely beaten after the inspectors’ departure.
2.11 In October 1996, head of the prison guards allegedly beat all prisoners, thus “celebrating” the second anniversary of the 1994 escape. The complainant was allegedly beaten for an hour and a half.
2.12 In the autumn of 1996, a prisoner who had been released allegedly met with the complainant’s mother and explained to her the conditions in which her son was detained. The mother filed a complaint with the prison authorities. After this, the complainant was beaten, threatened with death, and forced to sign a disclaimer.
2.13 In early 1997, another list of deceased prisoners was discovered in the complainant’s cell;
he was beaten again and was confined, together with his cell-mates, to 3 days of isolation.
2.14 After the commutation of his death sentence in 1998, the complainant was allegedly held “in isolation” for another six months and was unable to meet with his family during this period.
2.15 The complainant alleges that because of the above-mentioned reasons, he was unable to, and was indeed prevented from, exhausting all available domestic remedies:
– Since 1997, his counsel has published a series of articles in different newspapers, in relation to the complainant’s situation and the situation of other death row prisoners, using information provided by the complainant.
However, no inquiry followed, nor was any prosecution instituted.
– In October and December 2002, several prisoners serving life sentences in Gobustan prison, including the complainant, filed complaints in the Gardaksy district court and in the Court of Appeal, denouncing the deplorable conditions of detention and the ill- treatment they had been subjected to.
However, the tribunals referred to examine these complaints on the ground that the claimants’ signatures had not been certified by the prison authorities. Many prisoners, such as the complainant himself, never received a reply from the courts.
– It is stated that the Ombudsman visited the prison on several occasions, but in spite of the complainant’s request, he was unable to meet with her.
2.16 The complainant alleges that he believes that, in the light of the facts outlined above, any further communication with the judiciary authorities of Azerbaijan would be futile and would subject him to supplementary pressure and intimidation, or even his physical disappearance as an important witness.
2.17 According to the complainant, he had not been hospitalized during his detention. He was examined on 15 November 2003 by a Medical Commission.
On 7 January 2004, he received the results and the diagnosis of the Medical Commission: “situational neurosis, elements character psychopathia”. The complainant claims that on 8 January 2004, when he examined his medical record sheet, he discovered that it had been changed with new type of medical form, and that the information from his previous medical records had not been recorded. Thus, according to him, no record was kept of his illnesses in 1994–2002 (haemorrhoids, rheumatism, neurosis,
“attacks”, and a cerebral attack in 1999).2 The
2 According to the complainant, the medical card of his cellmate, G., who had suffered form different diseases, including tuberculosis, was completely blank.
complainant alleges that his record card was substituted to prevent any possibility for him to seek compensation for the diseases suffered.
2.18 The complainant applied to the European Court of Human Rights (application N° 34132/03 of 29 October 2003, declared inadmissible on 29 April 2005). However, according to him, the allegations before the European Court relate only to the period following the allegations of the present communication, i.e., after 10 February 1998.3
The claim
3.1 The complainant claims that the conditions of detention, and the manner the authorities treated him while he was on death row (1994–1998), amounted to a violation of articles 1 (1) and 2 of the Convention.
3.2 Article 2, paragraphs 1 and 3 are also said to have been violated, as the cells where he was held were allegedly overcrowded by a factor of 2 to 4 compared to the possible occupancy, and he—as a former policeman—was held together with ordinary criminals.
3.3 Allegedly, in violation of article 12 of the Convention, the authorities omitted to investigate promptly and impartially deaths of prisoners who awaited execution, “when there were reasonable grounds” that their dead was the consequence of the torture and cruel treatment they were subjected to by the prison authorities.
3.4 Finally, the complainant claims a violation of article 13, because of the State party’s impossibility to secure an impartial examination of the claims of torture and cruel treatment.
State party’s observations on admissibility
4. The State party contested the admissibility of the communication on 19 July 2004. It recalls that it recognized the Committee’s competence to examine individual complaints on 4 February 2002, and that accordingly, the Committee is only competent to examine complaints submitted against Azerbaijan after that date. Accordingly, the State party considers the complainant’s communication to be inadmissible.
Complainant’s comments
5.1 By letter of 6 November 2004, the complainant concedes that the events complained of occurred before the State party’s acceptance of the Committee’s competence to examine individual complaints against it. According to him, however, the ratione temporis rule does not apply if violations continue after the date of entry into force of the
3 The European Convention for Human Rights entered into force for Azerbaijan on 15 April 2002.
procedure for the State party. As example, he refers to the jurisprudence of the Human Rights Committee (case of K. and K. v. Hungary, communication N° 520/1992, inadmissibility decision adopted on 7 April 1994, para. 6.4).
5.2 On the issue of exhaustion of domestic remedies, he reiterates that he did not believe in the effectiveness of the procedures in the State party. In support of this statement, he names five former death row prisoners who were granted new trials in 2002–
2004. Allegedly, all of them had complained of torture and ill-treatment in detention, but the courts allegedly ignored all of their claims and confirmed their life sentences.4
5.3 According to the complainant, in 2004, one prisoner serving a life sentence sought to obtain compensation for tuberculosis he had contracted while he was on death row from 1996 to 1998, detained in an overcrowded cell together with prisoners who suffered from tuberculosis. He lost his case and his cassation appeal.5
Issues and proceedings before the Committee 6.1 Before considering any claims contained in a complaint, the Committee against Torture must decide whether or not it is admissible under article 22 of the Convention.
6.2 The Committee has noted, first, that the complainant’s allegations (see para. 3.3 above) that the State party’s authorities have consistently failed to investigate reports of deaths of prisoners on death row. It recalls that it can only examine complaints if they are submitted by the alleged victims, close relatives, or by a representative duly authorized to act on the victim’s behalf. In the present case, the complainant has not presented any authorization to act on behalf of any other alleged victim.
Accordingly, the Committee finds that this part of the communication is inadmissible under rule 98, paragraph 2 (c), of its rules of procedure.6
6.3 On the remaining parts of the complainant’s claims, the Committee recalls that the State party had challenged the admissibility of the communication on the ground that the events complained of took place before its acceptance, on 4 February 2002, of the Committee’s competence to deal with individual communications under article 22 of the Convention. The complainant has refuted this assertion by invoking the “continuing effect”
doctrine.
4 According to the complainant, only on one occasion was a life sentence commuted to 15 years of imprisonment, due to a decriminalization of an offence.
5 It is stated however, that the Supreme Court made no decision on the case, because the plaintiff was pardoned, released and left the country.
6 CAT/C/3/Rev.4.
6.4 The Committee recalls that a State party’s obligations under the Convention apply from the date of its entry into force for that State party.7 It considers, however, that it can examine alleged violations of the Convention which occurred before a State party’s recognition of the Committee’s competence to receive and consider individual communications alleging violations of the Convention (i.e., before the declaration under article 22 became effective, i.e., 4 February 2002, in the present case), if the effects of these violations continued after the declaration under article 22 became effective, and if the effects constitute in themselves a violation of the Convention. A continuing violation must be interpreted as an affirmation, after the formulation of the declaration, by act or by clear implication, of the previous violations of the State party.
6.5 The Committee has noted that in the present case, the complainant’s allegations under articles 1, 2 and 13, of the Convention (see paras. 3.1, 3.2 and 3.4 above) all relate to events which occurred before the State party’s recognition of the Committee’s competence to consider individual complaints.
According to the complainant, however, these alleged violations had effects which continued after the State party’s acceptance of the Committee’s competence under article 22.
6.6 The Committee has equally noted that the complainant filed an application in the European Court of Human Rights, regarding events which occurred after 10 February 1998, which, according to him, can be clearly distinguished from the issues submitted to the Committee. This application was declared inadmissible on 29 April 2005. The European Court held, inter alia, that the complainant’s allegations of mistreatment on death row, which are identical to the claims in the present communication, were inadmissible.8
7 See O.R,M.M., and M.S. v. Argentina, communications Nos. 1, 2, and 3/1988, inadmissibility decision adopted in November 1989.
8 The Committee has noted that the European Court, acting through a Committee of three judges, declared the application inadmissible on two grounds: partly on (a) non-exhaustion of domestic remedies (articles 3, 8, 14, and 34, of the European Convention), and (b) with regard to the applicant’s remaining complaints, on the ground that the information before the Court does not reveal any violation of the applicant’s rights and freedoms under the Convention.
6.7 In this context, the Committee recalls that it shall not consider any communications from an individual under article 22, paragraph 5 (a), of the Convention, unless it has ascertained that the same matter has not been, and is not being, examined under another procedure of international investigation or settlement; the Committee is satisfied that examination by the European court of Human Rights constitutes an examination under such a procedure.
6.8 The Committee considers that a communication has been, and is being examined by another procedure of international investigation or settlement if the examination by the procedure relates/related to the “same matter” within the meaning of article 22, paragraph 5 (a), that must be understood as relating to the same parties, the same facts, and the same substantive rights. It observes that application N° 34132/03 was submitted to the European Court by the same complainant, was based on the same facts, and related, at least in part, to the same substantive rights as those invoked in the present communication.
6.9 Having concluded that the “same matter” has been the object of the complainant’s application before the European Court and it was examined and declared inadmissible, the Committee considers that the requirements of article 22, paragraph 5 (a), have not been met in the present case. In the circumstances, the Committee decides that it is not necessary to examine the other two grounds of inadmissibility, namely on ratione temporis and non exhaustion of domestic remedies.
7. The Committee against Torture consequently decides:
(a) That the communication is inadmissible;
(b) That the present decision shall be communicated to the State party and to the complainant.
Communication N° 273/2005
Submitted by: T.A.
Alleged victim: The complainant State party: Canada
Declared inadmissible: 15 May 2006
Subject matter: deportation of complainant to Myanmar with alleged risk of torture and cruel, inhuman or degrading treatment or punishment
Procedural issue: non-exhaustion of domestic remedies
Substantive issues: risk of torture on deportation;
risk of cruel, inhuman or degrading treatment or punishment on deportation Articles of the Convention: 3, 16
1.1 The complainant is Mr. T.A., a Burmese national born on 8 January 1978 in Yangon, Myanmar, and currently residing in Canada, from where he faces deportation. He claims that his forcible return to Myanmar would constitute a violation by Canada of articles 3 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment. He is represented by counsel.
1.2 In accordance with article 22, paragraph 3, of the Convention, the Committee transmitted the communication to the State party on 15 July 2005, and requested it, under rule 108, paragraph 1, of the Committee’s rules of procedure, not to expel the complainant to Myanmar while his complaint is under consideration by the Committee. The request was made on the basis of the information contained in the complainant’s submission and could be reviewed at the request of the State party in light of information and comments from the State party and the complainant.
1.3 By submission of 21 December 2005, the State party requested that the admissibility of the complaint be examined separately from the merits.
On 26 January 2006, the Special Rapporteur on New Communications and Interim Measures granted the State party’s request, pursuant to rule 109, paragraph 3, of the Committee’s rules of procedure.
The facts as presented by the complainant
2.1 The complainant was involved in student demonstrations while attending the University of Hlaing, Myanmar, in 1998. In November 1998 he was involved in a demonstration where he was detained and questioned. In detention, the complainant alleges that the police made him sign a document stating that if he was caught in anti- government activities again, he would be detained indefinitely. After his release, he was interrogated on
several occasions and he knew that the Government was monitoring his activities. In 2001 the complainant distributed documents relating to human rights abuses, although he did not belong to a democracy organization. He was not caught distributing these documents. In 2001 a friend of the complainant founded a soccer (football) association (‘union’) and asked him to join. The complainant agreed and recruited more members to play soccer.
At the time in Myanmar such associations or unions were not allowed.
2.2 In January 2002 the complainant was granted a visa to study English at the Global Village School in Vancouver, Canada. He arrived in Canada on 14 December 2002, on a student visa.
2.3 In February 2003 he applied for refugee status after his mother had informed him that the Government of Myanmar was looking for him for distributing anti-government literature. She told him that the authorities had detained his father and interrogated him about the complainant’s activities.
His mother also told him that one of his friends had been arrested.
2.4 The complainant’s application for refugee status was dismissed on 25 September 2003.
Counsel explains that the complainant did not highlight that he was a member of a soccer ‘union’
at the time of his application for refugee status, as he thought that ‘relevant organizations’ for the purposes of the application meant political organizations, not sporting organizations. He did not consider at the time that he was at risk for his involvement in the soccer ‘union’, and only learned of a warrant for his arrest based on his involvement in the soccer ‘union’
at a later stage. On 20 July 2004 the complainant made submissions under the pre-removal risk assessment (PRRA) procedure, including new evidence in the form of a letter from his father and a copy of the warrant for his arrest dated 29 December 2003. The PRRA was denied on 17 September 2004.
At the hearing on 29 September 2004 the complainant was advised to return by 7 October 2004 with an itinerary to return to Myanmar. He was scheduled to leave Canada on 26 October 2004.
2.5 The complainant applied for leave and judicial review of the PRRA decision before the Federal Court of Canada on 14 October 2004, which was due to be heard on 25 October 2004. In the meantime, on 22 October 2004 a consent agreement was reached between the complainant and the Minister of
Citizenship and Immigration. As part of the agreement, the complainant was required to provide new PRRA submissions by 5 November 2004, which was extended to 26 November 2004, while a stay of deportation was granted on 22 October 2004.
The second PRRA was denied on 8 June 2005. The complainant was advised that he was to complete his departure requirements on 18 June 2005. An application for leave and judicial review of this PRRA decision was filed at the Federal Court on 30 June 2005. A motion to stay the removal was filed in the Federal Court on 8 July 2005. In the meantime, the complainant was notified by the Canada Border Services Agency that a travel document to Myanmar had been obtained on his behalf, and that he was scheduled to be deported on 18 July 2005.1
2.6 On 15 July 2005 the Federal Court granted the stay of execution of the removal order, on the basis that the officer who performed the complainant’s PRRA assessment had attributed little weight to the arrest warrant and had not clearly indicated whether the warrant was genuine or not.
2.7 In light of this finding, on 3 August 2005 the Special Rapporteur on New Communications and Interim Measures of the Committee lifted the provisional interim measures previously issued by the Committee.
The complaint
3.1 The complainant argues that he would be at risk of arbitrary arrest, beatings and torture if he were returned to Myanmar, where human rights violations within the meaning of article 3, paragraph 2, of the Convention are said to be frequent.
3.2 Counsel refers to the United States Department of State Report for Burma (2004) and its reports of the human rights violations in Myanmar, including the fact that in January 2004 seven students who had formed an illegal football ‘union’
were given sentences ranging from seven to fifteens years imprisonment. Counsel also provides reports from non-governmental sources containing information on the human rights situation in Myanmar, and that those suspected of pro- democratic political activity are killed, arrested and detained without trial. Counsel refers to evidence from a medical training programme manager at the International Rescue Committee confirming that the Burmese Government regularly detains those deportees that it believes left Myanmar for political reasons.
3.3 The complainant highlights that he has been active in pro-democratic Burmese groups since his arrival in Canada. Specifically, he is involved in the
1 The State party subsequently informed the Committee that the removal order had not been enforced.
Action Committee for Free Burma, is a supporter of the National League for Democracy, the Burmese Children Fund as well as the Myanmar Heritage Cultural Association. There is currently a warrant out for his arrest in Myanmar for his involvement with the soccer “union”. In addition, the complainant argues that the fact the Canadian authorities have applied for, and received, a passport on his behalf has alerted the Myanmar authorities.
State party’s observations on admissibility
4.1 On 21 December 2005, the State party contested the admissibility of the communication on two grounds. Firstly, it argues that the complainant has not exhausted domestic remedies. On 26 October 2005 the Federal Court granted the complainant’s application for leave to apply for judicial review of the decision on his pre-removal risk assessment (PRRA). The hearing on the application for judicial review was scheduled for 24 January 2006. If his application is successful, the complainant will be entitled to a new PRRA assessment. If the application is not successful, the decision of the Federal Court can be appealed to the Federal Court of Appeal if the Federal Court judge certifies that the case raises a serious question of general importance, under section 74 (d) of the Immigration and Refugee Protection Act (IRPA). A decision of the Federal Court of Appeal can be appealed, with leave, to the Supreme Court of Canada. Further, if the judicial review is not successful, the complainant could also apply for a further PRRA on the basis of any new evidence that may have arisen since the last determination, although in that case he would not have the benefit of a statutory stay of removal.
However, he could apply for a judicial stay of removal pending the disposition of that application.
The State party refers to the jurisprudence of the Committee to find that judicial review is widely and consistently accepted to be an effective remedy.2 4.2 In the view of the State party, the PRRA procedure is an effective remedy which should be exhausted, contrary to the Committee’s jurisprudence.3 The State party notes that during its examination the complainant would not be removed.
If successful, the complainant will become a protected person and barring serious security concerns will be eligible to apply for permanent resident status, and ultimately citizenship. It also considers that the PRRA is more comprehensive than the ‘post-determination refugee claimants in
2 The State party refers to, inter alia, communication N° 183/2001 B.S.S.v. Canada, Views adopted on 12 May 2004, para. 11.6.
3 The State party refers to communications N° 133/1999, Falcon Ríos v. Canada, Views adopted on 23 November 2004, para. 7.4, and N° 232/2003, M.M. v. Canada, admissibility decision of 7 November 2005, para. 6.4.
Canada’ risk assessment, which had been considered as an effective remedy by the Human Rights Committee.4 In the view of the State party, the Committee’s decision in Falcon Ríos was based on the erroneous finding of fact that in the PRRA application in that case “it would only be any fresh evidence that would be taken into consideration, and otherwise the application would be rejected.”5 It is correct that pursuant to section 113 (a) of the IRPA
“an application whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection”. However, the State party highlights that an exception has been read in by the Federal Court for those applicants whose claims for refugee protection had been rejected prior to the coming into force of the IRPA.6 PRRA applications are considered by specially trained officers, trained to consider provisions of the Canadian Charter of Rights and Freedoms as well as of international human rights treaties. Further, the State party submits, contrary to the Committee’s jurisprudence,7 that PRRA officers are independent and impartial, referring to the jurisprudence of the Federal Court of Canada.8 Further, PRRA is said to be a remedy governed by statutory criteria for protection, conducted pursuant to a highly regulated process and in accordance with extensive and detailed guidelines. It is subject to judicial review, and there is no authority for the proposition that a discretionary remedy cannot be an effective remedy, for purposes of admissibility.9
4 The State party refers to communication N° 604/1994, Nartey v. Canada, inadmissibility decision of 18 July 1997, para. 6.2; communication N° 603/1994, Baduv.
Canada, inadmissibility decision of 18 July 1997, para.
6.2; communication 654/1995, Aduv. Canada, inadmissibility decision of 18 July 1997, para. 6.2.
5 Communication N° 133/1999, Falcon Ríos v. Canada, Views adopted on 23 November 2004, para. 7.5.
6 The State party refers to Nikolayevav. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 708;
Cortez v. Canada (Minister of Citizenship and Immigration), 2003 FCT 725.
7 The State party refers to communication N° 232/2003, M.M.v. Canada, admissibility decision of 7 November 2005, para. 6.4.
8Sayv. Canada (Solicitor General), 2005, FC 739. The State party also refers to numerous Canadian Federal Court cases.
9T.I.v. United Kingdom, App. N° 43844/98, Reports of Judgements and Decisions, 2000-III; communication N° 250/2004, A.H.v. Sweden, inadmissibility decision of 15 November 2005. The State party also refers to communication N° 939/2000, Dupuyv. Canada, inadmissibility decision of 18 March 2005, para. 7.3 (HRC), concerning the effectiveness of judicial review of an application for mercy to the Minister of Justice.
4.3 Further, the complainant has not yet filed an application on the basis of humanitarian and compassionate considerations, which the State party maintains would also be an available and effective domestic remedy. The assessment of a humanitarian and compassionate application, under section 25 of the IRPA, consists of a broad, discretionary review by an officer who determines whether a person should be granted permanent residence in Canada for humanitarian and compassionate reasons. The test is whether the person would suffer unusual, underserved or disproportionate hardship if he had to apply for a permanent resident visa from outside Canada. The assessing officer considers all the relevant information, including the person’s written submissions. A humanitarian and compassionate application can be based on allegations of risk, in which case the officer assesses the risk the person may face in the country to which he would be returned. Included in the assessment are considerations of the risk of being subjected to unduly harsh or inhumane treatment, as well as current country conditions. In the event that such an application is granted, the person receives permanent residency subject to medical and security screening which can eventually lead to Canadian citizenship.
4.4 For the State party, the humanitarian and compassionate consideration application is also an effective remedy which should be exhausted, contrary to the Committee’s jurisprudence.10 The State party argues that the simple fact that a remedy is discretionary does not necessarily mean that it is not effective.11 It invokes a judgement of the European Court of Human Rights in which the court determined that a discretionary remedy available to unsuccessful refugee claimants in Germany to prevent removal to a substantial risk of torture was adequate to fulfil Germany’s obligations under article 3 of the European Convention on Human Rights.12 Furthermore, while the decision adopted in humanitarian and compassionate applications is technically discretionary, it is in fact guided by defined standards and procedures and must be exercised in a manner consistent with the Canadian Charter of Rights and Freedoms and Canada’s international obligations. In the event that the application is refused, the person can make an application for leave to apply for judicial review to
10 The State party refers, inter alia, to communication N° 133/1999, Falcon Ríos v. Canada, Views adopted on 23 November 2004, para. 7.3.
11 The State party refers to communication N° 169/2000, G.S.B.v. Canada, discontinued by letter of the Committee dated 25 November 2005, in which a failed refugee’s humanitarian and compassionate consideration application was granted.
12T.I.v. United Kingdom, App. N° 43844/98, Reports of Judgements and Decisions, 2000-III, para. 460.
the Federal Court on the standard of “reasonableness simpliciter”, which means that the ‘discretion’ is far from absolute.
4.5 The State party challenges the Committee’s reasoning in Falcon Ríos to the effect “that the principle of exhaustion of domestic remedies requires the petitioner to use remedies that are directly related to the risk of torture in the country to which he would be sent, not those that might allow him to stay where he is.”13 The State party argues that article 3 of the Convention obliges States not to expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
If an individual is permitted to stay in Canada, it follows that he will not be returned to the country where he alleges to be at risk. It should not matter on what grounds a person is not removed.14 The State party invokes the Committee’s decision in A.R. v.
Sweden 15 where it was determined that an application for a residence permit, which could be based on humanitarian grounds but which could be decided on the grounds of a risk of torture was a remedy required to be exhausted for the purposes of admissibility. The State party argues that since a humanitarian and compassionate application may also be based and approved on the ground of risk the person may face in the country to which he would be returned, it meets the requirements set out by the Committee.
4.6 Secondly, since the complainant is not in immediate danger of removal, the communication is also inadmissible under article 22, paragraph 2, of the Convention and rule 107 (c) of the rules of procedure, as incompatible with article 3 of the Convention, and is manifestly unfounded under rule 107 (b) of the rules of procedure.
4.7 On 10 February 2006 the State party informed the Committee that the author’s judicial review application was granted on 27 January 2006.
Pending the completion of the new PRRA, the complainant will have the benefit of a statutory stay of removal, and is therefore not presently at risk of removal to Myanmar. Therefore, the communication is inadmissible on the basis of non-exhaustion of domestic remedies.
13 Communication N° 133/1999, Falcon Ríos v. Canada, Views adopted on 23 November 2004, para. 7.4.
14 The State party refers to T.I.v. United Kingdom (App.
N° 43844/98, Reports of Judgements and Decisions, 2000- III, paras. 458–459), where the European Court of Human Rights was concerned with whether there were
“procedural safeguards of any kind” protecting the applicant from removal.
15 Communication N° 170/2000, A.R. v. Sweden, inadmissibility decision of 23 November 2001, para. 7.2.
Complainant’s comments
5.1 On 12 February 2006 counsel commented on the State party’s observations. She notes that the complainant submitted his humanitarian and compassionate application on 17 January 2006.
Further, on 27 January 2006 the Federal Court granted the judicial review and remitted the PRRA application to be determined by a new officer. New PRRA submissions were due on 17 March 2006.
5.2 The complainant argues that the PRRA is not an effective remedy for purposes of admissibility.16 Although PRRA officers may be considered to be specially trained, they are not experts when it comes to official documents such as warrants or summons for arrests and do make erroneous findings in such regard. The fact that, in the present case, such an error occurred during the first PRRA is evidence that such findings are not an effective remedy for those facing arrest in countries such as Myanmar. The complainant further submits that although he is now subject to a new PRRA assessment, he cannot be sure that the new PRRA officer will not make the same erroneous finding in respect of the warrant and the risk. For this reason, counsel argues that the Committee should declare the communication admissible. In the alternative, should the Committee find that the communication is inadmissible, the Committee should suspend its decision until the new PRRA determination has been made.
Issues and proceedings before the Committee 6.1 Before considering any of the allegations in a communication, the Committee against Torture must decide whether or not the communication is admissible under article 22 of the Convention. The Committee has ascertained that the same matter has not been and is not being examined under another procedure of international investigation or settlement.
6.2 In accordance with article 22, paragraph 5 (b), of the Convention, the Committee does not consider any communication unless it has ascertained that the individual has exhausted all available domestic remedies; this rule does not apply where it has been established that the application of the remedies has been unreasonably prolonged, or that it is unlikely, after a fair trial, to bring effective relief to the alleged victim.
6.3 The Committee takes note of the State party’s contention that the complaint should be declared inadmissible under article 22, paragraph 5 (b), of the Convention since domestic remedies have not been exhausted, and since the complainant was granted a stay of removal and is not currently at risk of being deported. The Committee notes that the
16 Referring to communication 232/2003, M.M.v. Canada, admissibility decision of 7 November 2005.
complainant’s application for refugee status was refused, that pursuant to the new IRPA he has already completed two sets of PRRA procedures, and that he was granted a stay of removal each time.
The Committee also notes the State party’s statement that, when a refugee claim was rejected prior to the coming into force of the new IRPA, an exception has been made by the Federal Court for similar cases, which does not restrict PRRA submissions to new evidence that became available after the rejection of the refugee claim. The Committee recalls that the complainant subsequently applied for leave and judicial review of the second PRRA decision. On 15 July 2005, the Federal Court of Canada granted the stay of execution, on the grounds that the previous PRRA officer had attributed little weight to the arrest warrant and had not clearly indicated whether the warrant was genuine or not. Finally, on 27 January 2006 the Federal Court granted the judicial review and remitted the PRRA application to be determined by a new officer. In the view of the Committee, the decisions of the Federal Court support the contention that applications for leave and judicial review are not mere formalities, but that the Federal Court may, in appropriate cases, look at the substance of a case.
6.4 The Committee further notes that pursuant to section 232 of the IRPA Regulations the complainant is not at risk of deportation during the ongoing consideration of the new PRRA. It notes that the complainant has not addressed the State
party’s arguments about the effectiveness or availability of the PRRA, except to speculate that he cannot be sure that a third PRRA officer will not make new erroneous findings about the arrest warrant issued in Myanmar and the risks in that country. He has furnished no evidence that it would be unreasonably prolonged or unlikely to bring effective relief in his particular case. In light of this information, the Committee is satisfied with the arguments of the State party that, in this particular case, there was a remedy which was both available and effective, and which the complainant has not exhausted. Further, as the complainant is not presently at any risk of being deported, the Committee finds that the conditions in article 22, paragraph 5 (b), of the Convention have not been met.
6.5 In light of the foregoing, the Committee does not consider it necessary to address the effectiveness and availability of the humanitarian and compassionate ground application.
6.6 The Committee is therefore of the view that domestic remedies have not been exhausted, in accordance with article 22, paragraph 5 (b), of the Convention.
7. The Committee consequently decides:
(a) That the communication is inadmissible;
(b) That this decision shall be communicated to the author and to the State party.
B. Views under article 22 of the Convention against Torture
Communication N° 8/1991
Submitted by: Qani Halimi-Nedzibi Alleged victim: The author
State party: Austria
Date of adoption of Views: 18 November 1993
Subject matter: ill-treatment during detention;
evidence obtained under torture
Procedural issue: non-exhaustion of domestic remedies
Substantive issues: failure promptly to investigate allegations of torture, evidence obtained under torture
Articles of the Convention: 12, 15
1. The author of the communication is Qani Halimi-Nedzibi, a Yugoslav citizen, currently imprisoned in Austria. He claims to be a victim of a violation of articles 12 and 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by Austria. He is represented by counsel.
The facts as submitted by the author
2.1 The author was arrested on 19 April 1988 and charged with drug trafficking. The trial at first instance opened on 23 January 1989. He was convicted on 4 July 1990 of having been in charge of an international drug-trafficking organization which allegedly operated from Austria between November 1985 and December 1987. The court of first instance (Landesgericht für Strafsachen) sentenced him to 20 years’ imprisonment, plus a fine of 2 million schillings, as well as a fine of 7 million schillings in place of the customs he failed to pay. On 4 July 1991, the Court of Appeal rejected the author’s appeal against his conviction, but reduced the sentence of imprisonment to a term of 18 years.
2.2 The author alleges that following his arrest in 1988 he and six named witnesses were maltreated, beaten and tortured by police inspector J.J., who was in charge of the criminal investigation. They were allegedly coerced to make incriminating statements.
The author’s wife, who was in her third or fourth month of pregnancy, had a miscarriage shortly after she had been interrogated by police inspector J.J.
The police inspector allegedly also threatened to kill the author. The author raised these matters before the investigating judge on 5 December 1988. In particular, he stated: “I was pressured so long until I admitted that the drugs belonged to me. Inspector J.J.
grabbed me by the hair and threw me against the wall; he also submerged my head in a bucket of
water... I suffered an eye injury which required hospital treatment.”
2.3 During the trial at first instance, author’s counsel requested all statements made to inspector J.J. to be ruled inadmissible as evidence. He referred to the declaration made by Austria when ratifying the Convention against Torture in July 1987, which reads: “Austria regards article 15 of the Convention as the legal basis for the inadmissibility provided therein of the use of statements which are established to have been made as a result of torture.”
The court, however, ruled against his motion.
2.4 The Court of Appeal rejected counsel’s plea for nullity of the judgement in first instance, taking into consideration the Austrian legislation, the non- substantiation of the allegations of ill-treatment and the fact that the evidence given by the main witnesses remained unchallenged. The Court of Appeal decided that in the circumstances the question of direct applicability (“unmittelbare Anwendbarkeit”) of the Convention against Torture did not arise.
The complaint
3. The author claims that the failure of the Austrian authorities promptly to investigate his allegations of torture and the refusal of the courts of first and second instance to exclude as evidence against him statements allegedly made by him and several witnesses as a result of torture constitute a violation of articles 12 and 15 of the Convention.
State party’s observations and the author’s comments thereon
4.1 The State party, by submission dated 27 February 1992, argued that the communication was inadmissible.
4.2 It submitted that criminal proceedings against Inspector J.J., initiated on 5 March 1990, following a complaint by the author, were still pending. The length of the investigations was attributable to the fact that difficulties had arisen in obtaining the testimonies of witnesses in the former Yugoslavia and Turkey. The State party indicated that, if Inspector J.J. would be found guilty of having ill- treated detainees in order to obtain incriminating statements, the author’s case could be reopened. It
argued that a retrial would constitute an effective remedy.
4.3 The State party further contended that the author could have appealed to the Constitutional Court under section 144 of the federal Constitution, as he claims to be a victim of abuse of administrative power and compulsion.
4.4 Since no appeal to the Constitutional Court had been submitted by the author and criminal proceedings against Mr. J.J. were still pending, the State party argued that the communication was inadmissible under article 22, paragraph 5 (b), of the Convention, on the ground of non-exhaustion of domestic remedies.
4.5 The State party moreover argued that the communication was inadmissible as incompatible with the provisions of the Convention. It submitted that the allegations that the witnesses had been tortured were not raised before the investigating judge, but only during the trial, after the witnesses were confronted with their statements; prior to these allegations the statements were properly deemed to be admissible evidence. Moreover, the State party argued that the witnesses gave independent, admissible evidence before the investigating judge.
The State party stated that only one witness disputed the correctness of the statement made to the police;
however, his statement did not incriminate the author. The correctness of other statements was not in dispute.
4.6 As concerns the author, the State party conceded that he claimed before the investigating judge to have been subjected to torture; however, according to the State party, he denied the charges against him and did not make a confession as such;
thus it cannot be said that his statements were used as evidence in violation of article 15.
4.7 Finally, the State party submitted that it appears from the trial record that the jury’s verdict was not based on the statements made by the witnesses who had claimed to have been subjected to torture.
5.1 In his comments on the State party’s submission, counsel maintained that the communication should be declared admissible.
5.2 As regards the exhaustion of domestic remedies, counsel submitted that it was incomprehensible that the criminal proceedings against Inspector J.J. had not yet been concluded. He contended that the proceedings were unreasonably prolonged and indicated that the delay appeared to be attributable to the fact that the State party had joined the author’s case with other pending matters against Inspector J.J. Thus, the difficulties in obtaining the testimony of witnesses in the former Yugoslavia and Turkey, concerning another
investigation, were postponing the investigation of the author’s allegations. He contended furthermore that the courts had failed to examine the allegations of torture in a timely fashion, during the criminal proceedings against the author.
5.3 Concerning the possibility of an appeal to the Constitutional Court under section 144 of the Federal Constitution, counsel argued that this appeal was not available to the author, as this procedure applies to administrative, not to criminal law.
Moreover, counsel argued that, even if this appeal were available, it would not constitute an effective remedy, as criminal courts are not bound by the evaluation of evidence in the Constitutional Court.
5.4 Concerning the State party’s contention that article 15 of the Convention had not been violated, counsel submitted that it is not clear from the text of article 15 how it should be established that a statement is made as a result of torture. He argued that it is sufficient that the author adduces some evidence indicating that a statement was given as a result of torture. In this connection, he referred to the difficulty for a victim to prove that he has been subjected to torture, owing to the isolation in detention and the absence of independent witnesses during interrogation. He further stated that article 15 applies to “any statement”, not only to confessions or false statements, as the State party seemed to imply. He finally argued that it could not be said that the author’s allegations were examined by the jury during his trial, as Inspector J.J. was not questioned on the issue, nor confronted with witnesses.
Committee’s admissibility decision
6.1 At its eighth session, the Committee considered the admissibility of the communication.
It ascertained that the same matter had not been or was not being examined under another procedure of international investigation or settlement, and that a case concerning the author which was pending before the European Commission of Human Rights concerned a different matter.
6.2 The Committee further considered that article 22, paragraph 5 (b), of the Convention did not, in the circumstances of the case, preclude the Committee from considering the communication on the merits.
In this context, the Committee considered that there had been an unreasonable delay in the conduct of investigations into the author’s allegations of torture, which were made in December 1988, and that no further effective remedies appeared to be available.
7. On 5 May 1992, the Committee therefore declared the communication admissible. It noted that the facts as presented by the author might raise issues under articles 12 and 15 and also under other provisions of the Convention.
State party’s submissions on the merits and the author’s comments
8.1 The State party, on 10 November 1992 and 4 January 1993, reiterates that the author made his complaint of ill-treatment months after its alleged occurrence. It submits that the author has suffered from eye trouble since childhood and that the medical records show that he complained about his left eye for the first time on 16 September 1988. As a result of examinations by the prison doctor on 14 November 1988, aphykia (the absence of the lens of the eye) and ablatio retinae (detachment of the retina) were found. Subsequently, after examinations at the Vienna Eye Hospital it was concluded that the author’s left eye was blind. The State party forwarded a copy of the medical record in the author’s case.
8.2 With regard to the investigations into the author’s allegations, the State party states that the criminal proceedings against Inspector J.J. and a colleague were stopped by the Prosecutor’s office on 6 November 1992, on the ground that following preliminary investigations the allegations were found to be totally unsubstantiated. At the preliminary hearing, the interpreter who had been present during the interrogations testified that the conduct by the police officers had been correct and that she had never witnessed any acts of torture. Only two witnesses, both co-defendants of the author, claimed to have been given one or two blows by Inspector J.J.
All other witnesses gave exonerating evidence. No medical evidence was available to substantiate the allegations.
9.1 In his comments on the State party’s submissions, counsel maintains his claim that the author’s eye injury was caused by Inspector J.J. at the end of June or the beginning of July 1988, when the author was hit with a pistol and his head was banged against a table.
9.2 Counsel further claims that some witnesses, who could have corroborated the author’s allegations, were not called by the Prosecutor during the preliminary investigations against Inspector J.J.
Among these persons is the author’s wife, who no longer lives in Austria.
10. On 26 April 1993, the Committee decided to request the State party to appoint, in consultation with the author’s counsel, an independent expert in ophthalmology in order to determine the date of and the origin of the eye injury. It further referred to article 12 of the Convention and requested the State party to submit written explanations clarifying the delay in initiating the investigation of the author’s allegations.
11.1 On 27 July 1993, the State party forwarded to the Committee an expert opinion prepared by an
ophthalmologist. His report shows that the author’s eye was already blind in March 1989, when he was first examined at the Eye Hospital, as a result of an old retinal detachment and that it had begun to show the first signs of an external squint. The State party concludes that the eye must have gone blind before 1988, since a blind eye does not begin to squint until after a long period of blindness.
11.2 The State party recalls that the author was arrested on 19 April 1988 on the suspicion of being involved in internationally organized heroin trafficking. On 5 December 1988, the author for the first time claimed to have been subjected to torture and threatened by Inspector J.J. Neither the Journalrichter nor the investigating judge had observed any signs of ill-treatment. The author repeated his allegations in a number of written submissions to the Public Prosecutor, the Attorney General and the Minister of Justice. Police Inspector J.J. and one of his colleagues were questioned on these charges by the investigating judge on 16 February 1989; they rejected the accusations made against them.
11.3 The State party submits that, since no signs of an injury could be established and the police officers denied the charges, no strong suspicion existed that an act of torture had been committed. It was therefore decided that the criminal proceedings against the author could proceed. During the trial against the author, from 8 to 11 January 1990, witnesses testified that they had been ill-treated by Inspector J.J. and his colleague. As a result, preliminary investigations against the two policemen were instituted on 5 March 1990.
12. In his comments on the State party’s submission, dated 21 October 1993, counsel submits that the State party had not consulted him about the choice of the medical expert. He further states that the expert’s report does not necessarily exclude the author’s version of events. He emphasizes that the author received medical treatment in prison after having been ill-treated but that the records of this treatment were not kept.
Examination of the merits
13.1 The Committee has considered the communication in the light of all information made available to it by the parties, as required under article 22, paragraph 4, of the Convention.
13.2 The Committee notes that the author has claimed that he was ill-treated after his arrest and that as a consequence he suffered an eye injury. The State party has denied the alleged ill-treatment and has claimed that the author’s eye injury dates from childhood. It has submitted an expert report, in which it is concluded that the author’s left eye, with almost absolute certainty (“mit an Sicherheit
